So many people have been asking about pandemic parenting, co-parenting, custody, or visitation.  The real issues arise when one of the parties, or child, comes up with a positive test result.  Up until recently the thought of positive test results for many, especially children, was illusive.  But now with these new variants, that’s more of the reality for many.  Regardless, these times we are currently experiencing can’t compare to any other such time in our living history.  So the courts, like its constituents, are still trying to make sense of all of it.  Things like, to vaccinate or not vaccinate, to allow virtual school or in-school sessions, to enforce visits or suspend them…are all examples of issues plaguing the Family Court.

 

Pandemic Parenting

Pro-vaccination vs Anti-vaccination Parents

It is no secret that most judges are very conventional in their view on vaccinations, the Covid vaccination is no different.  So in the past when a Family Court judge was presented with the issue of whether a minor child should be vaccinated when one of the parents opposed, the outcome was almost always predictable.  Judges would almost always override the opposing parent’s authority by ordering that the child gets a vaccination, except in rare instances. The reason judges have always been mostly pro-vaccination is that they relied on science, data & statistics to support their position.  The only exception was when the child’s treating doctors recommended against the vaccinations for medical reasons. Even then, the level of scrutiny was always above the norm.  Judges are almost in agreement that Covid vaccinations are the safest bet for all involved.

 

Virtual School vs. In School Session

This issue is a new phenomenon to some degree.  If either parent has sole legal custody, then this is not an issue, that parent gets to decide.  The only exception is if the other parent seeks to change or modify the sole legal custody order. In that case, the issue of in-school vs. virtual can actually serve as the basis for the modification. In the past, the issue that most resembled this one was homeschool vs. in school.  The courts in those cases were inclined to rule in favor of in school.  This started to change in the past few years when homeschooling became a viable option.  When the data showed that homeschooled children were actually doing better academically it became easier to influence the courts.

However, the issue with Covid is a little different.  Academics is not really the focus in these pandemic times, it’s about safety.  This makes this issue very tricky because it’s not necessarily the safety of the target child but of the entire school population.  Judges are forced to consider whether the parent’s “right” to send the child to school should be trumped by the safety of the public (school). Although judges are still obligated to apply the best interests factors (which vary from state to state) to help it make its determination.   But even with that in mind, they can’t ignore their duty to keep the public’s safety in mind even if they don’t state it.

 

Covid Positive: Suspend Visits vs. Enforce Visits

This is where things get very volatile.  If a parent (or their paramour) or a child tests positive, should the child stay where they are, return home, or do something else.  Better yet, what happens if the child is in a blended family and one of its members tests positive, how should visits happen then?  These are all very likely scenarios and have been happening a lot.  The courts are all over the place with this issue.  In New York, for instance, the courts are ordering that custody orders be exercised no matter what anyone’s (or their family members’) Covid status is.  This means that if the child has Covid or the parent who is supposed to have visited has it, the visits are to happen regardless.

The other scenario is whether a positive child who was exercising visits with a non-custodial parent should return to their home. Either way, the rationale is that both parents still have rights to their time with the child.  The courts have always taken the position that parents can take care of their sick child during their respective visitation times.  And them testing positive for Covid doesn’t change that.

The CDC, on the other hand, suggests quarantining and so are doctors who are treating the Covid positive parent/child.  They are recommending that the child not expose anyone else to the virus by leaving their environment.  So who should influence the judge more, the rights of the parents or the medical community? This is not really a “best interests” issue, as much as it is a public safety issue.  The child’s well-being might be affected if visits are suspended because of either way someone is missing out on their time.  But the time can be made up once the positively tested party is cleared.

 

Theory vs. Practice

In a practical sense, the only issue that might be worth going to court over is school.  In theory, to vaccinate or not to vaccinate is disputable. But what if the other parent gets the child vaccinated before court involvement?  You can’t unring a bell, meaning you can’t unvaccinated the child. So the issue then becomes one of Contempt.

The same with the visits, if the disputing parent decides to proceed to court it might be too late.  By the time the case gets in front of a judge, the visiting time has already passed.  So, again, the issue presented to the court would be about Contempt, Modification, or both. Either parent can conceivably seek to modify a current custody order based on how this issue was handled. The way the other parent exercised judgment, for example, deciding to ignore the doctor’s recommendations, can be considered in a modification case.

The school issue, on the other hand, is always a relevant one.  It’s the only one of these issues that can change at any time.  So, in other words, it hardly ever becomes a moot issue.  The judge’s decision has the propensity to take into account things that might happen in the future.  So it’s best to get the court involved at any time when Covid, or any other issue, has a direct impact on academic performance.

 

Final Thoughts on Pandemic Parenting

The courts are still all over the place on some pandemic parenting and other pandemic-related issues.  So I strongly urge Family Court parties to get a consultation from a local family law attorney.

Sole Custody

 

Will the Court Award Sole Custody

In today’s world, there is a lot of confusion about the different forms of custody. We have all heard of the joint custody, some custody and full custody. However, what many are not aware of is that there are two major basis for any custody, that is physical and legal custody.  Physical custody refers to the residence of the child, while legal custody is the decision-making authority the parents have.  These can be either one or a combination of both of them.

 

Types of Custody

Joint custody shared or 50/50 are used interchangeably but differ in application. Joint custody can be granted with respect to physical and/or legal custody. Shared custody, on the other hand, usually only applies to physical custody where the parents split time equally. 50/50 custody, is not a legal concept but is used in place of joint or shared custody, especially where physical custody is split equally.

Full custody or sole custody are also often used interchangeably. The difference between these two being based more on the circumstances of the parties. Full custody is usually “presumed” in situations where custody has not been established by the courts.  This means that the parent that physically has the child has custody until the court decides otherwise. Sole custody, is a legal concept determined by the court. A parent who has sole custody has 100% decision-making authority and physical custody. The other parent typically has no contact or some visitation or parenting time with the child in some custody scenarios.


Change to Child Custody Arrangements during Covid 


The Courts’ Position on Sole Custody

Most states are moving toward a “presumption” of joint or shared custody, presuming that these arrangements are in the best interests of the child.

Judges are moving away from awarding sole custody to one parent even in cases where the “fitness” of the other parent is questionable. These days the court will only award sole custody when there is clear evidence of specific abuse, neglect or abandonment. The specific bases for ordering sole custody are in situations of abuse, neglect, abandonment, incarceration, mental illness, or relocation. If any of these are proven the judge presumes that the noncustodial parent is “unfit” or that the other parent is more “fit” to parent the child(ren). The courts will justify rulings that allows both parents to play an important role in their children’s lives as opposed to limiting involvement.

A parent can be awarded sole physical custody (which is the same as primary custody). If that is the case. the parties will often share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In these situations, the parents would make joint decisions about the child’s upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights under a parenting agreement or schedule.

Conversely, a parent whose awarded sole legal custody can still be directed to split physical custody with the other parent. The variation in these scenarios depends mainly on each state’s laws regarding custody.

 

Making a Case for Sole Custody

It’s one thing to allege the basis for sole custody, it’s entirely different to prove it.  Unless sole custody is agreed to by both parents, which is how sole custody is normally granted, proving it in court is no easy task. Of course, some grounds for sole custody are more obvious than others, a trial is still often necessary.  The extent to which the petitioner must provide proof or evidence of the grounds depends on other factors as well.  For instance, in a case of abandonment, which is defined differently in each state, mere absence from the child’s life may warrant further explanation as to why.

So, when making your case, it is prudent on the petitioner to understand the legal concepts and how they are proven in court.  Getting a handle on your state’s “tendency” to rule one way or the other requires diligence.  In fact, it is advisable to work with an experienced professional who can help you with the nuances of this area.   Additionally, custody trials can be awfully expensive, extremely time consuming and mentally & emotionally draining.

 

Alternatives to Sole Custody

A viable alternative to sole legal custody can be as simple as choosing specific language in the court order or agreement.  Including phrases such as “ X parent has final decision-making”;  “both parents are to decide on educational, medical and social issues jointly. In the event the parties are unable to agree, X parent has the final say”; “X parent has the authority to make decisions with respect to educational, medical and social issues when the child is in their home” and similar verbiage.  The beauty of negotiating with a mediator, amongst yourselves or with lawyers present is that almost any of these goes.  If the court is forced to decide, then the chances of bypassing sole custody this way is gone.

 

Conclusion

In sum, if you are determined to get sole custody then you need to start preparing for it way in advance.  The more you know, the more you prepare, the more help you get the more likely you are to succeed.

 

Written by Tracey Bee

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